Belatedly Breaking Silence on Filibuster Reform

Before I move on to the point of this post, let’s raise our glasses to the lack of filibuster reform. Without the McConnell and Reed deal, we might have changed our blog’s name to some other obscure procedural reference. For now though, thank you filibuster for your resilience in the face of opposition (irony intended).

Now, why didn’t the Senate reform the filibuster? There are a number of really great posts on this very subject from Gregory Koger (here and here), Steven Smith, and Jonathan Bernstein. If you haven’t read those, you should. For our part though, I made some fairly contrarian predictions (here and here). In short, we predicted why the filibuster would stick around and not be reformed.

One reason for this prediction is a different analytical frame. I used a historical/crisis perspective to analyze potential filibuster reform. I’m not going to argue that this is superior to the other perspectives listed above. Those scholars are entirely more knowledgeable than I on the filibuster and quite frankly have WAY more publications on the topic. Regardless, I thought it would be fun to recap how a historical institutionalist might interpret filibuster reform.

Generally speaking, historical institutionalists analyze how conflicting interests arise into moments of crisis. In this case, how will majority and minority competition in the Senate develop in such a way that procedural reform is necessary to solve the impending crisis? Now, measuring crisis is difficult and can be done using a variety of data. I used legislative production for simplicity. Granted, this wasn’t done systematically. I simply did so using my impression of legislative efficiency (really scientific, I know). This was a different tact to examine the filibuster; and possibly further removed from actual filibuster data. Many people observed the rise in cloture votes and invoked cloture as a sign that the filibuster was bringing Congress closer to crisis.

Source: Ezra Klein, Washington Post

Rising cloture votes is certainly important to examining the filibuster but I don’t think it constitutes Senate crisis. Cloture votes are an indication of filibusters but they don’t really measure filibusters or minority obstruction for that matter. They measure how majority’s deal with filibusters. Is this important to Senate obstruction? Absolutely. Is it indicative of institutional crisis? Possibly, but it is certainly not the whole story.

We can’t discard the rise in cloture votes. It undoubtedly has a place in this discussion. However, we also need to consider how Congress, as a whole, was performing. And overall, the 111th performed well (very well by historical standards). In other words, filibuster frustration was due to inability to pass bills quickly. Not the inability to do anything at all. Here is what I mean. Filibusters mean less now than in the past. Changes in Senate rules have devalued the filibuster to an extent. The dual track system makes filibusters politically less costly (see Nate’s post). Before the dual track system filibusters stopped all legislation. Today the dual track system allows the Senate to continue in the face of filibuster threats to particular bills. So while the filibuster definitely slowed consideration for some bills, it didn’t prevent the Senate from legislating entirely. In short, while more time is spent voting on cloture, it doesn’t completely halt the Senate’s legislative productivity. It manages to continue passing legislation despite increased filibuster threats.

In this sense, the dual track system allows Senate to avoid complete institutional crisis. It serves as a buffer to filibuster reform. If the vast majority of the Democratic agenda was completely killed, it would have been reformed quickly. However, this wasn’t the case. The 111th Congress made monumental contributions to advancing gay rights, regulating the economy, and developing comprehensive healthcare policy, just to name a few. This production worked against institutional reform. Put simply: if it ain’t broke, don’t fix it.

Before you jump down my throat for saying the Senate isn’t broken, let me qualify that statement. Clearly, the use of the filibuster is a problem. It will probably be reformed in the relatively near future. However, what I’m suggesting is that the rise in cloture votes we see today is not an apocalyptic sign of institutional crisis but a characteristic of the modern, post dual-track, filibuster system. And while it’s important to consider this data, we need to keep in mind that it does not reflect pure obstructionism but how the majority chooses to deal with filibusters with a dual-track system. Until filibusters transform into more significant suppressive tool in the hands of the minority, we’ll continue to see the filibuster in its current form…at least according to this particular historical perspective.


About Joshua Huder
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4 Responses to Belatedly Breaking Silence on Filibuster Reform

  1. Thanks for the link — I should clarify that while Greg Koger and Steven Smith are serious filibuster/Senate rules scholars, I’m not, unless being a parties scholar counts. I’m just an informed kibitzer.

    I don’t exactly disagree with what you say here (and very much agree with your November 1 post), but I think it’s important to note that the 111th Senate really was different; it really was a 60 vote Senate, and that had never been the case before. That means, at least in my interpretation, that every single measure and nomination was filibustered.

    The other big thing about the 111th is that Democrats had a mostly unified caucus of between 58 and 60 Senators, and often could scrape up a 60th vote even when they needed one or two Republicans. So it was an extremely productive Congress…but despite what I really do think were unprecedented levels of filibustering.

    I wouldn’t call the current situation a crisis, but I don’t think it’s stable in the long run. I don’t think it will survive an extended period of unified government.

  2. Joshua Huder says:

    That’s a fair point. And I definitely agree to an extent. The 111th was definitely different. Something I wished I put more emphasis in my post was the small the Republican caucus. Such a small minority was unprecedented in the dual track system. With only 41 seats, I have a hunch they abused the filibuster to gain as much bargaining leverage as possible. I think the slightly fewer cloture votes and cloture filings, with a slight increase in invoked cloture, supports your case that closing debate was easier. But the fact Democrats had such a large majority was a deterrent to reform (Binder 1997). Which ties into the production argument I made above. Larger majorities are normally associated with more production and less reform.

    That aside, I also think the dual track system significantly reduced the political costs associated with filibustering. I don’t think we see these epic cloture levels without a dual track system. For example, I don’t think the spike of cloture votes in the 91st Congress (the initial dual track Congress) is coincidental.

    Similarly, the gradual increase in cloture attempts and votes appears to be a function of the new Senate scheduling procedures. In that sense, I think rising cloture votes aren’t a sign of systemic crisis but merely one symptom among many. Systemic crisis is more comprehensive. It’d have to include majority size (preferably small), inefficiency, and overall performance. Without inefficiency I don’t see reform happening.

    Like you said though, the current track is definitely not sustainable. I just think a couple more factors need to fall in line before reform can occur. At this point, we’re likely just waiting for those to fall in line.

  3. Yeah…I used to believe that the tracking system was a big causal factor, but Greg (and IIRC Sarah and the other experts) argue pretty persuasively that the key factor was that attrition stopped working. I guess the question is: once attrition didn’t work (for filibusters of, say, 5-40)…if not dual track, then what?

    The other thing is the willingness of non-intense minorities, mostly but not always partisan minorities, of 41-49 to filibuster. That strikes me (and again I’ve been convinced on this over time) as explained by norms disappearing, not the tracking system.

    It is possible of course that the particular adaptation (tracking) then had subsequent consequences, but I’m really not sure. Basically, the majority had to do something, and if it wasn’t the exact system (tracking, holds) they did come up with then what else would it have been?

  4. Joshua Huder says:

    Sorry for the delay. This past week was very busy.

    In any case, you make a really good point. Disappearing (and appearing) norms play a huge role. Attrition is vital in this regard. However, a rise is cloture is not necessarily a failure of attrition but again how majority leaders chose to deal with filibusters.

    Going back to the 1975 reform effort, a practice to recess in the middle of a filibuster without nullifying the filibuster became more popular. This practice allowed filibusters to pause at the end of a day and resume when the Senate reconvened the following morning without starting a new “legislative day.” A new legislative day would kill the motion and speech of the Senator. Choosing to motion for a recess is a prerogative of the majority leader. So, majority leaders could hold all night sessions forcing Senators to speak through the night but they choose not to. It’s likely this is partly disappearing norms and partly because cloture became so much easier after enacting the 1975 reform.

    However, I still don’t think the dual-track system can be cast aside. The graph above illustrates this point. After 1975, we see a gradual rise in cloture votes. This suggests, as you point out, that using attrition to close debate was in decline. At the same time, that gradual increase doesn’t compare to the sudden spike from the 91st to the 92nd Congresses (again, the initiation of the dual track system). While I agree that the disappearance of attrition is notable and absolutely a part of this story, I don’t think it primarily explains the sharp increase in cloture votes.

    Again, both of these strategies don’t really measure filibustering but how majorities deal with filibusters. Without the dual track system, filibusters would be cut in half for the simple reason that no other motion or bill could be considered until the current motion is closed. That alone would cut down on opportunities for minorities to filibuster.

    I guess what I’m trying to get at is that attrition in the dual track system isn’t as feasible because employing attrition on one bill would mean avoiding the opportunity do business on the other schedule. In that sense, cloture becomes the vogue tool to close debate because attrition isn’t a feasible strategy for majorities that want to enact policy in the midst of a filibuster. I don’t think attrition stopped working as much as it fails to accomplish the same goals in the dual-track system. In that sense, majorities choose to use cloture rather than employ attrition for productivity purposes.

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